Australia Voted For Marriage Equality, Not A Culture War

To understand the danger Australia now faces, we must look to recent American history.

David Glasgow
Executive Director, Center for Diversity, Inclusion and Belonging at NYU School of Law

Mario Anzuoni / ReutersLGBTQ people should be able to have their wedding cake and eat it too.

After years of public debate and a divisive postal survey, Australia is finally on the cusp of joining two dozen other countries in recognising marriage equality. Voters, by a comfortable margin, said YES to equal rights and, by extension, NO to the scare campaign mounted by opponents.

Now is a time to celebrate, but it is also a time for vigilance. Opponents have been studying the overseas experience and strategising for this outcome. They are poised to import an American culture war into Australia with the goal of stripping as much 'equality' out of 'marriage equality' as possible.

We cannot let that happen.

To understand the danger Australia now faces, we must look to recent American history. Over a period of almost two decades, the United States gradually legalised same-sex marriage state by state until the Supreme Court settled the issue nationwide. In 2015, the Court ruled that the denial of equal marriage rights violated the federal constitution.

The American experience shows that once you crack open the door to commercial faith-based discrimination, it swings wide open.

The issue has become so toxic and politicised that the Supreme Court will soon weigh in. On December 5, the Court will hear a case involving a cake shop owner from Colorado, who claims that being forced to serve same-sex couples on equal terms infringes his freedom of artistic expression.

The right to refuse service may seem like a strange cause to adopt, but is in fact a logical next step for vanquished opponents. Despite their non sequiturs about 'radical gay sex education' and the 'rights of children', opponents were always mainly concerned about the social meaning conveyed by marriage equality. They rightly feared that admitting same-sex couples to one of society's oldest and most revered institutions would stamp a seal of approval on relationships of which they disapprove.

Allowing businesses to exempt themselves from the law is the perfect way to maintain the stigma and exclusion that marriage equality was intended to address. Same-sex couples would have the technical right to marry, but face the risk of humiliation as they seek to exercise that right. The exemption would send an unequivocal signal that same-sex relationships are still second class in the eyes of the law.

Although the strategy is clear, Australian conservatives face two challenges in attempting to import an American culture war. The first is the religiosity gap. Half of American adults regularly attend religious services, compared to 15 percent of Australians. There is no groundswell of religious vendors begging for the right to discriminate.

The other challenge is that Australian law already prohibits discrimination on the basis of sexual orientation, while only 22 out of 50 American states currently do so. Protecting the 'religious freedom' of business owners would not create a carve-out from a newly granted right to marry. It would repeal existing law.

More importantly, when Australians voted yes in the postal survey, we voted for equality. Full stop. The question on the survey form was simple: "Should the law be changed to allow same-sex couples to marry?"

If opponents wanted to gut anti-discrimination laws, they should have laid out their plans beforehand and incorporated the issue into the survey question: "Should the law also be changed to allow commercial enterprises to discriminate against same-sex couples?"

Opponents did not take that path, because they knew they would lose on that question too. They deliberately kept their plans vague so that they could leave the door open for another campaign of obstruction if they got a result they did not like. Australians should not tolerate this cynical game-playing.

The American experience shows that once you crack open the door to commercial faith-based discrimination, it swings wide open: no business is off-limits, no reason too flimsy, and no service too attenuated from the marriage ceremony to justify discriminatory treatment.

Australians have waited long enough for marriage equality. It is time to take a stand against this attempt to Americanise our politics. It is time for the Parliament, finally, to get on with the job of swiftly legislating the will of the people.